ISPs face the music over file sharing

Should companies such as Tiscali act as judge and jury with alleged file sharers of copyright music, and cut off their connections? The record industry seems to think so, say Bobbie Johnson and Charles Arthur

The truth always proves hard to pin down when the fog of war descends - and it was no different when Britain's music industry took on internet providers last week. The trouble started when the British Phonographic Industry (BPI), one of Britain's top music industry bodies, began exerting pressure on two leading ISPs to close the accounts of alleged file sharers.

In letters to Tiscali and Cable & Wireless, the BPI requested the suspension of broadband access for 59 users (17 on Tiscali) who it said were making copyrighted music available over file sharing networks.

The 59 users stand accused of sharing their library of music, breaching copyright and the law. Those most commonly shared illegally include top 10 pop artists - or groups like Metallica, which has refrained from selling music digitally.

In the case of one Tiscali user, identified only by the IP address (the online equivalent of a postcode, as it identifies the user only to the ISP or those with access to connection logs), the BPI provided evidence in the form of a screenshot of named files being offered from that address.

Nitpicking

However, connecting to a file sharing network is not in itself illegal. And owning a file that has the same name as a copyrighted one isn't proof that the file contains that music. Offering that file for sharing is only illegal if it is copyrighted and you don't have the copyright holder's permission to do so. While this might seem like nitpicking, these are the points that ISPs must be aware of before they disconnect customers. The BPI, however, presented it as an open and shut case.

Although Cable & Wireless remained quiet, Tiscali came out swinging. "Tiscali does not intend to require its customers to enter into the undertakings proposed," it said in a written response. "It is not for Tiscali, as an ISP, nor the BPI, as a trade association, to act [in effect] as a regulator or law enforcement agency and [to] deny individuals the right to defend themselves against the allegations." But it did say it would write to one of the 17 - for whom the BPI had supplied a screenshot allegedly listing files being shared - asking for an explanation: "should we not [get one] in seven days we shall suspend the user's account pending resolution of your investigation, assuming by that time we have received evidence from you of a link between the user account and the IP address at the relevant time." Seven days later, no Tiscali user had been suspended.

However the BPI sniffed victory. "We welcome indications that Tiscali and Cable & Wireless will enforce those terms and conditions," said Peter Jamieson, the organisation's chairman.

Although the two positions seemed contrary, both sides sought to spin the better line. Tiscali was protesting about an attempt to circumvent the courts that could prove very dangerous to its public reputation. To be depicted as an ISP that would cut off customers' accounts at the first complaint from an outside organisation would be bad publicity, at a time when the competition for broadband customers has increased dramatically with the launch of "free" broadband offerings from Carphone Warehouse, Orange and earlier this week Sky. And Tiscali has no reason to do any favours to the music business: in June it shut down its legal peer-to-peer "Juke Box" service, citing the difficulty of doing deals with the record labels.

Still, one thing appears clear: ISPs increasingly find themselves in a sticky situations over the issue of broadband, file sharing and legality.

The ISPs' grumbles of protest turned into shrieks after a separate announcement last week, from an alliance of independent music labels and artists' groups. When proposals were revealed to charge ISPs to offset illegal file sharing - which music groups say has been implicitly promoted by net companies - some saw a pincer movement in operation.

According to Alison Wenham, who chairs the Association of Independent Music, ISPs have been reaping business benefits by providing fast connections used for file sharing and "profiting at our expense".

Digital levy

And although the BPI privately expressed astonishment at the idea of a digital levy, both groups shared a common language - of laying the blame at the door of service providers. Jamieson, after all, had said that ISPs should "face up to their responsibility on copyright infringement".

So are service providers now the prime target for legal action? And are customers in danger of being sold down the river by an ISP facing increasing pressure? Not so, says Kolvin Stone, an internet specialist with law firm Fox Williams.

"ISPs are a target now because they have valuable information," he says. "They are in a really difficult position."

Stone says that the difficulties have arisen because music industry bodies are attempting to expedite the legal process by avoiding the courts, where most of this dealing has taken place in the past. The BPI has reached settlements with more than 100 people it accused of file sharing, with summary court rulings against four others, and has about 30 cases outstanding.

"In the past, people haven't handed over customer details without a court order," he says. "Tiscali has duties not only under data protection laws, but also as part of the customer contract."

Indeed, in its response to the BPI, Tiscali remarked that "in the past... the bodies conducting those investigations have felt that a court would consider it necessary to see such evidence, supported by sworn statements". The war goes on.